Equality Act 2010 Guide

  1. Background
  2. Objective of EA
  3. How it operates
  4. Protected Characteristics
  5. Prohibited Conduct
  6. Direct Discrimination
  7. Disability Discrimination
  8. Indirect Discrimination
  9. Pregnancy and Maternity Discrimination
  10. Harassment
  11. Victimisation
  12. Instructing and causing discrimination
  13. Objective Justification

Background

Current framework:

  • Disability Discrimination Act
  • Sex Discrimination Act
  • Equal Pay Act
  • Race Relations Act
  • Age Discrimination Act
  • Gender reassignment under SDA
  • Marriage and civil partnership discrimination under SDA
  • Employment Equality (Sexual Orientation) Regulations
  • Employment Equality (Religion or Belief) Regulations – fusion of nine individual pieces of legislation and some 100 orders and regulations

Objective of EA

The EA does not just deal with employment. In addition to the general S1 socio-economic policy, it deals with discrimination in relation to goods and services, public procurement etc.
In relation to employment, its aims are:

  • Codification
  • Deal with issues raised by case law
  • Extend protection
  • Simplification

How it operates

Framework:

  • Equality Act
  • Schedules to the Act
  • Explanatory Notes
  • Guides
  • Codes of Practice (EHRC drafted)
  • S42 allows the old CP’s (race, sex, DD) to be used until new ones replace them
  • Implementation and transition arrangements
  • Oct 2010, April 2011 and 2013
  • The government has recently published transitional provisions, to read about them click here.

Protected Characteristics

Protected Characteristics have not changed (S4):

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Prohibited Conduct

Prohibited Conduct (incl.):

  • Direct discrimination
  • Indirect discrimination
  • Discrimination arising from a disability
  • Duty to make reasonable adjustments
  • Combined discrimination
  • Pregnancy and maternity discrimination
  • Harassment
  • Victimisation

Direct Discrimination

Direct Discrimination (s13)

  • “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
  • Therefore the requirement for a real or hypothetical comparator, who does not share the protected characteristic, is retained
  • No comparator necessary in maternity and pregnancy discrimination

Association and Perception:

  • S13 does not refer to the PC of any particular person (except marital or civil partnership status)
  • Previously with age, sex, disability, gender reassignment ­ the complainant needed to have one of those characteristics
  • The DDA was interpreted by EAT in Coleman v Attridge Law 2008 as moving away from this
  • The EA has accepted that modification and extended it to all strands of discrimination
  • Thus if someone treats (A) unfavourably because (A) looks after elderly patients, that can be discrimination because of Age (even though (A)’s age is not the reason for the treatment) ­ “Associative discrimination”
  • If someone treats (A) unfavourably because they think (A) is homosexual, that can be discrimination because of sexual orientation (even though (A) is not in fact homosexual) ­ “Perception discrimination”

Combined Discrimination (from April 2011, if brought into force)
In Bahl v Law Society 2004 CA noted that the absence of protection for combining protected characteristics was a problem
S14:

  • Dual (i.e. only two)
  • Only in relation to direct discrimination
  • Do not have to succeed on both PC’s
  • Potential defence ­ if can show not disc. because of either/or
  • Would bring a claim under both individual PC’s and then also s14 (Direct Discrimination)
  • Doesn’t apply to marriage and civil partnership, and pregnancy and maternity

Disability Discrimination

“A person (P) has a disability if (P) has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

  • No longer necessary to look at “capacities” including mobility, manual dexterity, physical coordination etc

In addition to direct, indirect, victimisation and harassment there are the additional claims of:

  • Discrimination arising from disability; and
  • Failure to make reasonable adjustments
  • s60 ­ unlawful to ask an applicant about health ­ enforceable by EHRC
  • If do ask ­ burden shifts to employer to prove the info was not relied upon
  • Therefore it isn’t a blanket ban ­ can also enquire whether an employee is able to undergo an interview (e.g. wheelchair access for interview/selection)
  • Can ask questions to comply with diversity monitoring; to establish whether an applicant has a disability

Discrimination arising from disability:

  • Disability Related Discrimination now “discrimination arising from disability” (s15)
  • Designed to counter the problems encountered by London Borough of Lewisham v Malcolm HL 2008
  • HL said the correct comparator is non-disabled person otherwise in the same circumstances e.g. in sickness cases ­ someone with the same absence record but no disability
  • Under EA ­ (A) discriminates against a disabled person (B) if (A) treats (B) unfavourably “because of something arising in consequence of (B)’s disability“, and (A) cannot objectively justify the treatment
  • If the treatment is because of (B)’s disability, it is direct discrimination
  • S15(2) ­ potential defence where (A) did not and could not reasonably have been expected to know, (B) had the disability
  • Now no reason for a comparator (therefore avoiding Malcolm difficulties)
  • There is now, under the EA, indirect disability discrimination ­ but this is likely to be over-shadowed

Duty to make reasonable adjustments (s20) has three aspects:

  1. Where a provision, criterion or practice (PCP) or physical feature puts a disabled person at a disadvantage compared to a non-disabled person;
  2. The employer must make reasonable adjustments to avoid the disadvantage; and
  3. Where, but for the provision of an auxiliary aid, a disabled person would be at a substantial disadvantage, there is a duty is to take reasonable steps to provide that auxiliary aid.
  • Duty does not apply where employer could not reasonably be expected to know of the disability and that the person will be at a disadvantage
  • Not DD to treat (A) not as favourably as (B) (a disabled person)

Indirect Discrimination

Indirect Discrimination (s19):

  • Extended to cover disability and gender reassignment – the DDA 1995 made no provision for indirect disability discrimination, which requires an element of group disadvantage; it focused on the disabled person’s individual circumstances
  • Harmonises the various definitions of indirect disc. (already broadly codified following EU Directives)
  • Indirect discrimination for pregnancy or mat. leave is dealt with under indirect sex discrimination

S19 ­ Indirect discrimination occurs when:

  • A applies a provision, criterion or practice (PCP) to (B)
  • That PCP applies to persons who do not share the relevant PC
  • The PCP would or actually puts persons who share (B)’s characteristic at a disadvantage when compared with persons whom (B) does not share the characteristic
  • The PCP would, or actually puts (B) at that disadvantage, and
  • The PCP is not a proportionate means of achieving a legitimate aim
  • Thus the new definition extends protection to those who would be (not just have been) put at a disadvantage i.e. those deterred by a discriminatory PCP
  • Objective justification for indirect discrimination remains the same

Pregnancy and Maternity Discrimination

Pregnancy and Maternity Discrimination (s18):

  • If treated “unfavourably” because of the pregnancy or an illness resulting from it; because she is on compulsory mat leave; or because she exercises or seeks to exercise the right to ordinary or additional mat leave
  • Comparator not necessary

Harassment

  • Protection is extended to colour and nationality
  • Victims do not need to actually possess the PC
  • Unwanted conduct “related to a relevant PC” which has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for (B) i.e. association and perception are included
  • Extends liability for employers for acts of a 3rd party where the harassment has occurred on at least 2 former occasions and it has not taken reasonable steps to prevent it

Victimisation

Victimisation (s27):

  • (A) victimises (B) if (A) (subjects (B) to a detriment because (1) (B) does a protected act or (2) (A) believes that (B) has done, or may do, a protected act.
  • A protected act = (1) bringing proceedings under the Act; (2) giving evidence or information in connection with proceedings under the Act; (3) doing any other thing for the purposes of or in connection with the Act; (4) making an allegation (whether or not express) that (A) or another person
    has contravened the Act.
  • Extended to cover victimisation for seeking, making or receiving a “relevant pay disclosure” i.e. a disclosure to establish if there is a connection between pay and having (or not having) a particular protected characteristic

Instructing and causing discrimination

  • s111 harmonises the various strands
  • Now unlawful for A to instruct, cause or induce B to discriminate, harass or victimise C, or to attempt to do so.
  • B and C can now bring proceedings if they are subjected to a detriment by A’s actions, even if the instruction isn’t carried out

Objective Justification

  • The “objective justification” test is used in relation to indirect discrimination, direct age discrimination and discrimination arising from a disability only
  • The ECJ held in Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317 that the measures taken by the employer:
  • Must correspond to a real need on the part of the employer
  • Must be appropriate with a view to achieving the objectives pursued
  • Must be necessary to that end
  • The EA adopts the wording “proportionate means of achieving a legitimate aim” as a summary of the ECJ’s position


This publication is intended for general summary guidance. It is not and should not be considered legal advice. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.